Chow v Gappy & Ors (SCA 10 of 2007) [2007] SCCA 9 (26 April 2007)

IN THE SEYCHELLES COURT OF APPEAL PAUL CHOW Appellant v.s 1. HENDRICKS GAPPY 2. ATTORNEY GENERAL 3. ALBERT RENE 4. WAVEL RAMKALAWAN Respondents seA No: 10 OF 2007 =========================================== Before: Bwana Ag. P., Hodoul, Oomah, JJA Counsels: Mr. Elizabeth & Mrs. Antao for Appellant Mr. Fernando & Mr. Camille for 1st Respondent Mr. Fernando & Mr. Camille for 2nd Respondent Mr. F. Bonte & Mr. Renaud for 3rd Respondent Mr. Oerjacques for 4th Respondent Date of Hearing: 23 April 2007 Date of Judgment: 26 April 2007 JUDGMENT 1. The petitioner in this case applied to the Constitutional Court with the following averments: The petitioner is the President and Leader of the Seychelles Democratic Party. - ! \-A On the 12th March 2007 the President of the Republic Mr. James Michel notified the speaker of the National Assembly of his intention to dissolve the National Assembly. On the 20th March 2007 the President in his state of the Nation address dissolved the National Assembly by Proclamation and called for a General Election to be held The said Proclamation was published in the Official Gazette on the 20th March 2007. The petitioner avers that on the 26th March 2007 the i" Respondent announced that election shall take place on the io». ii" and 12th May 2007. The petitioner is verily informed that the date of the elections will be published and Gazetted on 2nd April 2007. The petitioner avers that the said election dates are unconstitutional in that election would be held fifty (50) days after the said proclamation. The petitioner further avers that the 1st respondent mentioned hereabove amounts to a contravention or a likely contravention of Article 79(1) (2) read with Article 81(1) (a) of the Constitution of Seychelles. The petitioner avers that as Leader and President of the Seychelles Democratic Party he has an interest in the subject , , matter of the petition and that the petition is being made in good faith. 2. On the strength of the above, he prayed this Honourable Court to give the following orders:- (a) grant leave to the petitioner to proceed. (b) declare that the announcement and publication of the dates of the election by the i" respondent contravenes article 79(1) (2) and article 81 (1) (a) of the Constitution of Seychelles and is therefore null and void. (c) set aside the election dates as announced and published by the 1st respondent. In support of his prayer he swore an affidavit in support in the following terms: I am the deponent above-named. I am the President and leader of the Seychelles Democratic party. I have an interest in the subject matter of the petition and I make this in good faith. The President of the Republic, His Excellency, James Michel notified the speaker of the National Assembly, Honourable - France Mac Gregor, of his intention to dissolve the National Assembly and call for a general election on the 12thApril 2007. That on the zo" March 2007, presented before the National Assembly the President made a in his state of the Nation address proclamation dissolving the National Assembly and ordered the Electoral Commissioner to hold a general election. The said proclamation was published in the Official Gazette on the 20th March 2007. The Electoral Commissioner announced on the 25th March 2007 take place on the io", ii" and 12th May that election shall 2007. The said announcement was published in the Official Gazette on the 2nd April 2007. I aver that the said announcement and publication of the election dates are unconstitutional, null and void ab initio. I aver that the dates on which elections are to take place are 50 days after the Proclamation by the President and is contrary to constitution. I further aver that the Electoral Commissioner is obligated by the constitution to hold the said election within 30 days of the said proclamation. It is just and necessary for the Court to make a declaration that the act of the commissioner contravenes or is likely to contravene article 79 (1) (2) and article 81 (1) (a) of the constitution. That all the statement contained herein are true and correct to the best of my knowledge, information and belief. On the preliminary objection raised by the learned Attorney General that the petition lacked "locus standi", the Constitutional Court decided in his favour and gave reasons. Karunakaran J., in his minority judgment rejected the petition on the ground that: "there is a world of difference between the two concepts namely, (i) the existence of one's interest in the subject matter of the petition; and (ii) the existence of an injury to one's interest consequent upon the contravention of a Constitutional provision, other than Chapter 3." He concluded as follows: "the petitioner has miserably mized up the ingredients of the provisions under Article 46 with that of Article 130(1) in this respect and has come to this Court with inappropriate and improper pleadings in the petition." He added: "In the instant petition, the petitioner, in my judgment, failed to plead to the material facts necessary to constitute the - , , ~ actual contravention and the fact that his interest is being or is likely to be affected by the said contravention. " 4. As regards Perera, J., (Gaswaga J. concurring) who handed out the majority judgment, he stated as follows - "Paragraph 9 does not satisfy the requirements of Article 130(1), and the averment in paragraph 10 is based on Rule 6(1) of the Supervisory Jurisdiction of the Supreme Court, and not article 130(1) of the Constitution for a constitutional redress by this Court." 5. By way of recall, the petitioner in paragraph 9 had averred that - "the act of the t" respondent mentioned hereabove amounts to a contravention or a likely contravention of article 79(1) (2) read with article 81 (1) (aJ of the Constitution of Seychelles." Further, in paragraph 10 he had averred that - "as Leader and President of the Seychelles Democratic Party he has an interest in the subject-matter of the petition and that the petition is being made in good faith." 6. From his reasoning, he found that paragraph 9 does not satisfy the requirements because in his view the pleadings were inadequate and did not "contain a concise statement of material facts as required by rule 5 of the Constitutional Court Rules." Short of that concise statement of material fact, he held that that provision - which he held to be mandatory - was not satisfied to allow the petitioner access to the Constitutional Court. - 7. As regards the content of paragraph 10 which the appellant recited the fact that he was the Leader of the Seychelles Democratic Party and has an interest in the subject-matter of the petition, the learned Judge held that it was a mere averment. He stated: "its mere averment in paragraph 10 of the Petition that as Leader of the Seychelles Democratic Party he has an interest in the subject-matter of the petition is insufficient for the purposes of Rule 5. The petition should have been filed in a representative capacity of his political party. " 8. On the matter of locus standi, the Constitutional Court correctly juxtaposed the relevant parts of articles 46 and 130 for the sake of comparison and distinction. 9. The two articles form the very basis of the action whereby a citizen may seek redress before his Constitutional Court. Articles 46 provides: "(1) A person who claims that a provision of this Charter has been or is likely to be contravened in relation to the person by any law, act or omission may, subject to this article, apply to the Constitutional Court for redress." "(2) An application under clause (1) may, where the Constitutional Court is satisfied that the person whose right or freedom has been or is likely to be contravened is unable to do so, be made by another person acting on behalf of that person, with or without that person's authority. " 10. On the other hand, article 130 (1) provides: "(1) A person who alleges that any provision of this Constitution, other than a provision of Chapter III, has been contravened and that the person's interest is being or is likely to be affected by the contravention may, subject to this article, apply to the Constitutional Court for redress." 11. An applicant, to gain access to the Constitutional Court under article 46 (1) has to claim: (a) a law has been passed, or a public body has done something or omitted to do something; (b) the law, act or omission contravenes or is likely to contravene a provision of the Charter; (c) the contravention or likely contravention is in relation to him. 12. On the other hand, to gain access to the Constitutional Court under article 103, an applicant has to allege: (a) (b) the facts do not fit in Chapter III; they constitute a contravention of a provision of the Constitution; (c) his interest is being or is likely to be affected by the contravention. 13. All three judges have to be credited for their getting their interpretations right in the following respects: that constitutional provisions have to be interpreted in a purposive sense: Attorney General of the Gambia v Momodou lobe (1984) 3 WLR 174 at p. 173; Societe United Docks v Government of Mauritius (1985) LRC Const 801 at 844; Catanic Components Ltd v. Hill & Smith Ltd (1982) RPC 183 (HL); that a clear distinction is to be drawn between access afforded - under article 46(1) and that afforded under article 130(1); that in this regard, the former case speaks of a contravention as well as likelihood of contravention whereas the latter speaks of a contravention without more. They may also be credited for the references with which they back their argumentation. 14. Where they went wrong, however, is in the application of the principles that they so ably set out. On the particular distinction they drew, we wonder whether it makes any practical sense. We say so for the simple reason that what article 130 (1) takes away by one hand, it gives by another. The argument was that under article 130 (1), a petitioner has to aver a contravention whereas under article 46(1), he has to aver a contravention or a likely contravention of a provision of the Charter. In practical terms, that distinction drawn may be purely academic and theoretical. The reason we say so is that article 130 (1) even if it requires a likely contravention is not worded so widely as to include an allegation which article 130 (1) speaks of. 15. There is more to the above. What is not purely academic and theoretical is the fact that article 46 (1) encompasses two types of contraventions: contraventions that have taken place and contraventions that may take place. Thus, an Act already passed by the National Assembly in breach of the Charter is a contravention that has occurred. On the other hand, a Bill to be passed in the National Assembly in breach of the Charter is a law that may become law. Article 130(1), however, rests content only with contraventions that have been or alleged to have been. The difference basically is between the present and the imminent under article 46 (1) and the past ones under article 130 (1). - 16. To that extent the interpretation of learned Judge Karunakaran, while it has the virtue of having drawn the correct distinction, trips where he adds on that the petitioner in such a case should come to court with an actual contravention. The learned judge also went beyond the provisions of article 130 when he introduced the concept of injury in the simple and plain word "interest" when he stated that in an application under article 130 (1), one should show "the existence of an injury to one's interest." That is the jurisprudence of the United States, not the Constitution of Seychelles. An embarkation on that course may amount to a judicial castration of article 130 (1). 17. As regards the reasoning in the majority judgment, once again, the learned Judges got it right when they spoke of the difference which should exist in the interpretation of the Constitution as opposed to an interpretation of a statute. A Constitution is the people's Charter. An act of Parliament is an action of the legislature. The former wields the power from which the latter derives its mandate to work within the conceptual frame-work laid down in the Constitution. Where there is a reasonable apprehension that people's mandate is being exceeded in one form or another, a citizen is given the right by that very Constitution to rush to the Constitutional Court to seek redress. In this sense, the Constitutional Court is the repository of the content of the Constitution. A civil court resolves rights between citizen and citizen on the basis of the civil code provisions. A criminal court deals with law and order between the state and the citizen on the basis of the provisions of the criminal law. 18. A constitutional court is different and we dare say its judges display a pro-active frame of mind and read into the seeds of time thrown in and about in the Charter of the people. Its role should not be confused with that of a civil court or a criminal court. It sits - between the power of the people and the authority of the organized government to ensure that public affairs are conducted within the frame-work tacitly agreed upon and enshrined in the Charter. It is the temple and the throne to which the citizen - pecunious or impecunious - rushes to with a view to ensuring that the people power delegated to authority are properly used and not abused. Its prime purpose is to make the Constitution work. For Seychelles, the Pre-amble sets out how. We do not even need to go to judicial pronouncements to say what the Constitutional Court should have in mind when it is sitting to decide between people's power and public authority and between this land's dreams and this land's destinations. 19. Having said that we should rush on to add that Constitutional Courts have to be equally vigilant that their process is not abused by vexatious and frivolous applications. People are also born with whims and caprices. Some engage in ego trips. Some engage in serious work. Some help. Others hamper. They may come to court as individuals or busybodies, with either legitimate or vested interests. The Constitution Court's high responsibility lies not only in a judicious but enlightened approach in deciding the merit or demerit of an action under the Constitution. It is with this caveat that we approach the issue of locus standi in the constitutional context which is very different in other areas of the law. 20. Basically, what locus standi means is the right of a litigant to act or be heard before the courts. Originating in private law, it has become "one of the most amorphous concepts in the entire domain of public law". The right of a citizen to act or be heard before the courts could exist as a private right as well as a public right. - 21. Although our Constitution does not use the term "locus standi", it is a concept which encapsulates the enabling provisions of articles 46 or 130. But if it is being used to restrict or disable the provisions, it is being improperly used. The Constitution enshrines the freedoms of the people. Freedom is different from licence. A freedom to "ester en justice" is different from a licence to "ester en justice." At the same time, while checking the licence to "ester en justice," a court should not demarcate the line so far that it basically restricts the freedom by the stroke of a pen. That may amount to judicial dictatorship which is the worst form of dictatorship in a democratic society. Executive tyranny may be checked: the courts are here for it. Political tyranny may be checked: elections are there for it. Who checks judicial dictatorship? Except the self-restraint of judges themselves, short of extreme measures under the Constitution. 22. The responsibility on constitutional judges in the new democracies, accordingly, are never so great. It may be tempting to decide the petitioner has no locus and the petition is frivolous and vexatious and that is the end of the matter. The court~ will discharge its function as a court honourably by so doing. It may not be so easy to say the petitioner has a locus but let us at least hear him to see whether he has a point in the higher interest of the Constitution which we all have to serve. To say so would be a responsible exit of a Constitutional Court that will not hide behind a honourable exit. 23. In our view and our analysis, the petitioner has a locus. If the courts stated that the pleadings did not satisfy an application under article 130 inasmuch as both the minority and majority judgments rely on the pleadings to deny access to the petitioner, we shall say the premise on which the judges relied to so decide was seriously flawed. - 24. Both the majority and the minority judgments proceeded on the basis that the pleadings did not satisfy article 130. As it is, article 130 requires the person to allege a contravention which the petitioner had done in paragraphs 1-9 of his application. It also requires the petitioner to show that his interest is being or is likely to be affected by the contravention which he had alluded to in paragraph 10 by saying that as Leader and President of the Seychelles Democratic Party he has an interest in the subject-matter of the petition and that the petition is being made in good faith. 25. What did he have to do more? He was thrown out of the Court because he had failed to particularize it as required by Rule 5 of the Constitutional Court Rules which require that a petition filed under article 46(1) or article 130(1) shall contain a concise statement of material facts. The fact of the matter is that the petition does comply with Rule 5 in that it contains a concise statement of material facts but also that the petitioner has an interest in the matter as the Leader and President of the Seychelles Democratic Party. 26. We do not subscribe to the view taken by the majority judgment that Rules of Courts which are formulated to regulate access to court by the courts themselves and are subsidiary laws may be so interpreted as mandatory provisions, especially in this case. In a number of cases, they may be of a mandatory nature such as time limit but one should be wary of such interpretations which will have the effect of the tail wagging the dog, that is procedure swallowing substance especially in Constitutional law matters. 27. Article 130 (1), as clear, stands on its own - "subject to the provisions of this article." It does not state that it is subject to the provision of the Constitutional Court Rules. A requirement of procedure - - albeit formulated by the Courts - cannot be elevated to a (\ constitutional provision to deny access to the citizen for whom the court exists. 28. We would go further. We are aware that the Court was called upon to give a decision on procedural inadequacy because a preliminary point was raised to that effect. We would say that it would serve all parties to such petitions to ensure that preliminary polnts are raised with due notice so that parties on such essential matters come properly prepared. We feel sure that had this issue been raised with notice and with advanced preparations, we would have had the benefit of a better decision on the point, 29. The Constitutional Court seems to have taken the view that a petition is not a pleading as such and pleadings start after a petition is lodged. Nothing could be more erroneous. We need not cite elementary rules of procedure for such a proposition. Suffice it to say that a petition is as much a pleading as the papers filed thereafter. If any party had pleadings in the matter, which also included an affidavit, it was the petitioner and no other party. 30. For all the reasons which we have given above, we take the view that the petitioner had the necessary locus standi as has been laid out in his pleadings. 31. With this, we come to the merits of the appeal. 32. The appellant submitted 14 grounds of appeal against the findings of the Constitutional Court on his petition dated 28th March - 2007. For the sake of clarity, we shall succinctly state the appellant's contention as follows: the appellant disputes the finding of the Constitutional Court that the forthcoming election is a general election and not a by-election in law; the appellant disputes the finding of the Constitutional Court that Section 12 (2) (c), Elections Act, Cap 68A is not inconsistent with article 79 (2) of the Constitution and is not void; the appellant disputes the finding of the Constitutional Court that the Electoral Commissioner did not act unconstitutionally when he fixed the dates of the forthcoming general election for 10, 11 and 12 May 2007, following the dissolution of the National Assembly by the President of the Republic under Art. 110. 33. Art. 79 (1) provides for the holding of a general election upon the efflux of the National Assembly's five-year life: namely, sixty months, as specified in Art. 106 (1) of the Constitution. "A general election shall be held during the period starting at the beginning of the fifty-seventh month and ending at the end of the fifty-ninth month of a session of the - National Assembly." 34. The Assembly does not always run its full five-year life; it may ( dissolve itself by resolution of two thirds of its members, under Art. 111, or by the President of the Republic under article 110. 35. In this case, pursuant to article 110 (1) which provides: "The President may dissolve the Assembly in accordance with this article", President ]. A. Michel, by proclamation published in the Gazette of zo" March 2007, and after having given seven days' notice to the Speaker, as required, did dissolve the National Assembly which had been elected by the people of Seychelles in a general election held in October 2002. 36. The appellant contention is that, following the dissolution, twenty-five by-elections should be held "within thirty days" and that the Electoral Commissioner acted unconstitutionally by calling for a general election "within Sixty days". His argument is based on his reading of Art. 79 (2) in conjunction with Art. 81 (1) (a). 37. Whereas we commend and are grateful to all parties for their arguments and authorities submitted - which we have considered diligently -, we will proceed with our own reading of the relevant provisions of the Constitution bearing in mind two maxims pertaining to interpretation of legal provisions: "Interpretatio cessat in claris" Where there is clarity, no interpretation is required. However, if interpretation is required "Actus interpretandus est potius ut valeat quam ut pereat" A legal provision must be interpreted in a positive sense which gives effect to the intention of the legislator. - 38. Art. 79 (2) provides for the holding of a by-election when a seat of a directly elected member becomes vacant. "Where a person ceasesto be a directly elected member of the National Assembly under Article 81, a by-election shall be held within thirty days of the person ceasing to be a member of the Assembly unless the cessation occurred within three months before the beginning of the period within which a general election is required to be held under clause (1)" 39. The Constitution does not specifically provide for the period within which a general election shall be held following dissolution of the National Assembly by the President or the Assembly itself. However, the framers of the Constitution did provide in Art. 79 (8) that: "A law may provide for any matter, not otherwise provided for in this Constitution, which is necessary or required to ensure a true, fair and effective election of members of the National Assembly." 40. Such a law, the Elections Act 1995, Cap 68A has been enacted and it provides, inter alia, as follows: "12. (1) A National Assembly election which may be (a) a general election; or (b) a by-election, for the election of the directly elected members of the National Assembly. (2) A general election shall be held - - ( (a) during the period specified in article 79(1) of the Constitution, where the Assembly would stand dissolved by effluxion of the period specified in article 106(1) of the Constitution; or (b) during the period of three (3) months beginning with the date the Assembly would stand dissolved under article 106(3) of the Constitution; or (c) during the period of three (3) months beginning with the date the Assembly would stand dissolved under article 110 or article 111 of the Constitution." 41. Article 81(1) enumerates ten events on the occurrence of which a person directly a proportionately elected ceases to be a member of the National Assembly and the seat occupied by that person in the Assembly becomesvacant. These are (a) (b) (c) (d) on the dissolution of the Assembly; if the person by notice in writing to the Speaker, resigns; if the person ceasesto be a citizen of Seychelles; if the person is absent without the permission, which shall not be unreasonably withheld, in writing of the Speaker - (i) from Seychelles for a continuous period in excessof thirty days; or (ii) during a session of the Assembly, for a continuous period in excess of ninety days during which time the Assembly has been summoned to meet and continues to meet; - (e) if any circumstances arise which, if the person were not a member, would, pursuant to article 80, cause that person to be disqualified for election as a member; (f) subject to clause (2), if the person becomes party to a contract with the Government for or on account of any public service or if any firm in which the person is a partner or any company of which the person is a director or manager or in which the person has a controlling interest becomes a party to any such contract or if the person becomes a party to any such contract or if the person becomesa partner in a firm or a director or manager or the holder of controlling interest in a company which is a party to such contract; (g) if the person is elected President or appointed a Minister; (h) if, in the case of a proportionately elected member, the person ceases to be a member of the political party of which that person was a member at the time of election. (i) If, in the case of a directly elected member who was nominated for election by a political party, the person notifies the Speaker in writing that he has ceased to be a member of that political party; or (j) If, in the case of a person who was directly elected as an independent member, the person notifies the Speaker in writing that he is a member of a political party. - 42. The appellant argues that following the recent dissolution of the Assembly by the President, because "a person has cease(d) to be a directly elected member of the National Assembly under Article 81", article 79 (2) requires that"a by-election shall be held within thirty days".· He further argues that because twenty-four other directly elected members have also ceased to be members, twenty-five by elections should be held severally and concomitantly by reason of the principle of interpretation that words in the singular shall include the plural (Schedule 2). We cannot subscribe to such reading of the relevant provisions. Such an occurrence would be a singular oddity in our electoral process as well as in our Constitution. There is nothing to suggest that it was intended by the framers of our Constitution. Even if we could toy with such an innovative idea, the logic, the reason and the purpose behind it would boggle the mind. It would be above the understanding of the common man whose Constitution it is. It makes neither good sense, nor good interpretation, nor good law. 43. The reference in article 79 (2) to "article 81", without specifying any sub-paragraph, is deliberate and significant. The events or occurrences enumerated in sub-paragraphs "(a) to (j)" concern not only persons who are directly elected, but also persons who are proportionately elected members, nominated by a political party. 44. As aptly and vividly put by a member of this Court, article 81 is comparable to a basket and sub-paragraphs (a) to (j) are fruits of different types contained therein. For the purposes of article 79 (2), just as one picks up the appropriate fruit for a particular purpose, one identifies the occurrence in relation to the purpose. In this case, the purpose pertains to a directly elected member and results In a by election to be held "within thirty days". It is clear that sub-paragraph - (h) which concerns a proportionately elected member does not come within the ambit of Art. 79 (2). 45. Whereas article 79 (2), concerns only "directly elected members of the Assembly" who ceaseto be members under article 81, article 81 (1) (a) concerns dissolution as a result of which all elected members, irrespective of the mode of their election, cease to be members and the totality of seats become vacant. Dissolution terminates by anticipation the mandate of all members of the National Assembly and upon becoming effective, there is no Assembly which subsist. The definition of dissolution in Dalloz cannot be clearer "Acte par lequel Ie Chef de I'Etat ou Ie gouvernement met fin par anticipation un mandat de I'ensemble des membres d'une essembtee parlementaire." 46. A by-election pre-supposes the continuing existence of an undissolved Assembly and the suggestion of twenty-five concomitant by-elections is not only far fetched but this fails to cater for the election of proportionally elected members. To what subsisting Assembly would they return to? The flow is flagrant in the petitioner's interpretation. 47. The nature of the arguments and submissions of learned advocate for the appellant, Mr. Elizabeth, tended to suggest that the mischief lay on the 30 days. The reasons why the Constitution provides for 30 days for a by-election and 90 days for a general election does not need elaboration. A free and fair exercise of franchise where 25 constituencies are involved should not be done with indecent haste. On the other hand, for a single vacancy, there is some urgency that the National Assembly be fully and completely constituted, and placed back on its full course the soonest. The risk with such a short period of 30 days for 25 bj-elections opens the door to a criticism that the elections were rushed, parties were not properly prepared and the exercise of the franchise was far from free and fair. 48. In view of the above, this Court: Upholds the finding of the Constitutional Court that the coming election is a general election and not a by-election and declares accordingly. Declares that section 12 (2) (c) of the Election Act is not inconsistent with article 79 (2) of the Constitution. Finds that the Electoral Commissioner acted constitutionally when he fixed the dates for the coming general election. Hence, the appeal on the merits of the petitioners' petition is dismissed. In the same breath, we declare that the petitioner had the locus standi under the Constitution to initiate his action. No order as to costs. L........./..:;;l , ~ S. J. B ANA AG. PRESIDENT . (, '; i;) ~ ~:··2E JUSTICE OF APPEAL S. B. DOMAH JUSTICE OF APPEAL Dated this 26 April 2007, Victoria, Seychelles -